Opinion
98 C 4600
June 28, 2000
MEMORANDUM OPINION AND ORDER
Petitioner, Ronald D. Brown, has filed a petition for federal habeas corpus relief pursuant to 28 U.S.C. § 2254. He is currently incarcerated at Pontiac Correctional Center in Pontiac, Illinois. In 1987, following a jury trial, petitioner was convicted of armed robbery, aggravated criminal sexual assault and aggravated kidnaping and sentenced to life imprisonment under the Illinois Habitual Offender Act. The 18-year-old complainant testified that the petitioner abducted her at knife-point on the corner of Van Buren and State Streets in downtown Chicago and walked her down Jackson Street while holding the knife at her side. Petitioner attempted to obtain a hotel room but the complainant testified that after she made faces at the hotel clerk, the clerk told petitioner there were no rooms available. After leaving the hotel, petitioner walked complainant down Wabash Avenue past the back of the police station. Complainant testified that petitioner told her he would kill her if she screamed. After taking a bus, the petitioner took complainant to a high-rise Chicago Housing Authority building. He no longer had the knife at her side and complainant stated that she did not see it again. She attempted to attract the attention of several security guards as petitioner signed in but she said they did not see her.
Complainant further testified that once inside the petitioner's apartment, petitioner asked her if she had any money. She threw $21 on the floor. Petitioner then raped her numerous times. After he fell asleep, complainant got dressed in her shin, pants and coat, leaving her underwear and socks behind so that police could identify the apartment. She left the apartment and knocked on doors in the building marked "Captain" until someone answered. A security guard at the building testified that he found complainant walking through the building, hysterical and halfdressed, bruised and scratched. The police officer who responded to the call testified that complainant was hysterical and disheveled. The police found petitioner in an unlocked apartment and complainant identified him as the man who raped her. An officer testified that he did not find a knife such as the one the complainant described or money on the floor but that he had not searched all the drawers in the apartment. The doctor who treated the complainant testified that she had contracted the sexually transmitted organism chlamydia but that the test did not indicate how long she had had the condition.
At trial, petitioner did not take the stand. The only witness the defense presented was a security guard at the apartment building who testified that when entering the building, the complainant was in front of petitioner, not next to him. The guard did not see a weapon or any bruises on the complainant.
Petitioner appealed his conviction to the Illinois Appellate Court, raising the following nine issues:
1) He was not proved guilty beyond a reasonable doubt because the evidence was insufficient to prove that complainant was kidnaped, robbed and sexually assaulted;
2) The prosecution made numerous improper and inflammatory comments in opening and closing statements;
3) The trial court erred when it admitted evidence that the complainant had chlamydia after the sexual assault when there was no evidence that the petitioner had the infection or any showing of when the complainant contracted the disease;
4) The trial court erred when it refused to allow jury instructions on lesser included offenses;
5) The trial court erred when it failed to instruct the jury that the prosecution had the burden of proof to show that the complainant did not consent to sexual acts;
6) The trial court erred when it allowed jury instructions referring to the complainant as "the victim";
7) Petitioner's life sentence was in violation of the requirements of the Illinois Habitual Offender Act;
8) The Illinois Habitual Offender Act is unconstitutional because it violates the separation of power rule by removing the sentencing function from the court and placing it in the prosecutor's hands, and because it violates due process, equal protection and the Eighth Amendment; and
9) The Illinois Habitual Offender Act is unconstitutional because it precludes consideration of the offender's personal characteristics and the seriousness of the charged offense, in violation of due process and the Eighth Amendment.
The Illinois Appellate Court affirmed the judgment in October 1990. Petitioner filed a petition for leave to appeal to the Illinois Supreme Court, in which he raised the following arguments:
1) The appellate court incorrectly found no reversible error by evaluating each instance of prosecutorial misconduct separately without considering their cumulative impact. The court also found any error harmless in light of the strength of the state's case when it should have considered the error in light of its finding that the evidence was merely sufficient to support a verdict.
2) Instructions for lesser included offenses should have been given because the no weapon was recovered.
The Illinois Supreme Court denied petitioner's leave to appeal in January 1991. He subsequently filed a pro se post-conviction petition in July 1995, raising the following issues:
1) His rights to a fair trial and due process were violated because the police officers, prosecutors and complainant conspired to present "knowing use of perjured testimony and fabricated evidence" to obtain a conviction;
2) He received ineffective assistance of trial counsel because of the failure to object to the use of the word "victim" in the jury instructions, failure to preserve the issue of perjured testimony for appeal, and failure to object during post-trial motions to the refusal to provide jury instructions raising the issue of consent;
3) He received ineffective assistance of appellate counsel because of the failure to present issues to the Illinois Supreme Court and failure to raise issues involving ineffective assistance of trial counsel for failure to object to testimony regarding the victim's contracting chlamydia where no evidence existed that she petitioner had the condition and for failure to object to the use of the word "victim" in the jury instructions.
The Circuit Court of Cook County dismissed the post-conviction petition in July 1995 as meritless and noted that petitioner had included no supporting affidavits. It held that petitioner's claim that the prosecution used perjured testimony was waived and that his claims of ineffective assistance of trial and appellate counsel were meritless because counsel's failure to raise certain issues was simply a matter of strategy. The court also found that no prejudice resulted from the use of the word "victim" in the jury instructions.
Petitioner appealed, at which time the public defender filed a motion to withdraw as counsel pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). Counsel stated that the petition had not been filed within three years of sentencing and that petitioner had failed to allege facts that gave rise to a constitutional violation. In August 1996, the appellate court granted the motion to withdraw and affirmed the lower court's dismissal of the post-conviction petition. Petitioner filed a petition for leave to appeal to the Illinois Supreme Court, raising all of the arguments contained in his brief on appeal from the denial of post-conviction relief in December 1996, the Illinois Supreme Court denied leave to appeal.
Petitioner proceeded to file a second petition for post-conviction relief, raising the following claims:
1) Ineffective assistance of appellate counsel because counsel failed to argue that the evidence was insufficient to prove beyond a reasonable doubt that petitioner was guilty of aggravated criminal sexual assault, aggravated kidnaping and anned robbery;
2) Ineffective assistance of appellate counsel because counsel failed to argue that trial counsel was ineffective for conceding guilt in closing arguments;
3) Ineffective assistance of appellate counsel because counsel failed to argue that trial counsel was ineffective for failing to file motions suppress illegally obtained evidence;
4) Ineffective assistance of appellate counsel because counsel failed to argue that the state knowingly used the complainant's perjured testimony; and
5) Petitioner's equal protection and due process rights were violated where a "wrongly elected" Illinois Supreme Court denied him leave to appeal his postconviction petition.
The Circuit Court of Cook County summarily dismissed this second petition in January 1997, noting that petitioner had previously filed a post-conviction petition in July 1995. The Cook County public defender, assigned to the case after the state appellate defender withdrew because of a conflict of interest, moved to withdraw pursuant to Pennsylvania v. Finley. The appellate court granted the motion and affirmed the lower court's dismissal of the petition. Petitioner filed a third petition for leave to appeal to the Illinois Supreme Court; it too was denied.
In the instant petition for a writ of habeas corpus, petitioner raises the following issues:
1) He was denied due process and right to a fair trial by the prosecutor's improper and inflammatory statements during opening statements and closing arguments;
2) He was denied due process because the trial court did not tender instructions on lesser included offenses of criminal sexual assault, robbery and kidnaping even though evidence indicated that he did not have a knife;
3) The trial court improperly admitted evidence of the complainant's having chlamydia because the evidence was not connected in any way to the defendant and the prosecution did not show that complainant contracted chlamydia at the time of her contact with petitioner;
4) The trial court erred when it failed to instruct the jury that the state had the burden of proof to show beyond a reasonable doubt that the complainant did not consent to sexual intercourse;
5) The trial court erred when it referred to the complainant as a "victim" in the jury instructions;
6) Petitioner's guilt was not proved beyond a reasonable doubt because the complainant's testimony was incredible and the physical evidence failed to corroborate her testimony;
7) Petitioner was improperly sentenced to mandatory natural life imprisonment because the requirements of the Illinois Habitual Offender Act were not met;
8) The Illinois Habitual Offender Act is unconstitutional because it violates the separation of powers provision of the Illinois Constitution as well as due process, equal protection and the Eighth Amendment of the U.S. Constitution;
9) The Illinois Habitual Offender Act is unconstitutional because in prohibiting consideration of mitigating factors, it violates the Illinois Constitution as well as due process, equal protection and the Eighth Amendment of the U.S. Constitution;
10) Petitioner received ineffective assistance of appellate counsel because:
a) counsel failed to raise the issue that the prosecution had presented perjured testimony;
b) counsel failed to raise the issue that the evidence was insufficient to prove petitioner's guilt beyond a reasonable doubt;
c) counsel failed to raise the issue that trial counsel was ineffective for conceding in closing argument that it was undisputed that petitioner had sex with complainant;
d) counsel failed to raise the issue that trial counsel should have moved to suppress illegally obtained evidence;
e) counsel failed to raise all of petitioners s issues before the Illinois Supreme Court;
f) counsel failed to raise the issue that trial counsel was ineffective by failing to object to the complainant's testimony and the jury instructions;
11) Petitioner received ineffective assistance of trial counsel because counsel failed to object to the complainant's testimony and the jury instructions;
12) Petitioner's state constitutional right to present constitutional issues to the Illinois Supreme Court was violated because that Court is improperly elected;
13) Federal review is warranted to clarify how prosecutorial misconduct should be evaluated in relation to the strength of the evidence;
14) Federal review is warranted to clarify what evidence requires the giving of an instruction for a lesser included offense;
15) Petitioner's post-conviction petition should not have been dismissed because he raised the gist of a meritorious constitutional claim;
16) Petitioner pleaded sufficient facts in his initial post-conviction petition to prevail at that stage;
17) Federal review is warranted to determine:
a) whether petitioner made a showing of good cause in his first post-conviction petition to be entitled to appointment of counsel other than the public defender;
b) whether appellate counsel complied with Illinois Supreme Court Rule 651(c);
c) whether the Illinois Appellate Court erred in denying petitioner's motion for appointment of counsel and in allowing appellate counsel to withdraw; and
d) whether the Illinois Appellate Court erred in affirming the judgment of the trial court;
18) Federal review is warranted to clarify how to evaluate the factual allegations petitioner made in his post-conviction petition and whether they entitled him to an evidentiary hearing;
19) Federal review is warranted to determine if the Illinois Appellate Court applied the correct standard under Illinois law and whether it understood the nature of petitioner's factual allegations;
20) Federal review is warranted to clarify the standard for evaluating a pro se petitioner's post-conviction petition;
21) Petitioner was entitled to an evidentiary hearing as to the claims he raised in his second post-conviction petition; and
22) Federal review is warranted to determine if petitioner was entitled to appointment of counsel.
The court must evaluate this habeas petition according to 28 U.S.C. § 2254. Only claims that the petitioner is being held in state custody in violation of federal constitutional or statutory violations are appropriately raised in habeas petitions. 28 U.S.C. § 2254 (a). The court may not grant relief for claims that a state court has adjudicated on their merits unless that adjudication:
1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the U.S. Supreme Court; or
2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.28 U.S.C. § 2254 (d). Under the first prong, a decision contrary to U.S. Supreme Court law pertains to questions of law. Lindh v. Murphy, 96 F.3d 856, 868 (7th Cir. 1996) (en banc), rev'd on other grounds, 521 U.S. 320, 117 S.Ct. 2059 (1997). Under the second prong, a decision based on an unreasonable determination of the facts pertains to mixed questions of law and fact. Id. at 870. Federal courts conducting habeas review are not to disturb the state court judgment unless the judgment is based on errors serious enough to be considered unreasonable. Id. In addition, a state appellate court's factual summary is presumed correct unless the petitioner rebuts it with clear and convincing evidence. 28 U.S.C. § 2254 (e)(1).
Before the federal courts may review a petitioner's claim on the merits, the petitioner must have satisfied state procedural requirements. The doctrine of procedural default requires that the constitutional claims a petitioner raises in his habeas petition to have been fairly presented during the state court proceedings to provide the state courts with the opportunity to address their merits. Momient-El v. DeTella, 118 F.3d 535, 538 (7th Cir.), cert. denied 118 S.Ct. 448 (1997). A federal court is barred from considering constitutional issues if a petitioner did not raise them during the state proceedings in compliance with state procedural rules. Id. This bar is avoided only if a petitioner demonstrates: 1) cause for the failure to present the claim and prejudice if the claim is not heard; or 2) that a fundamental miscarriage of justice would be precluded an innocent person. Cawley v. DeTella, 71 F.3d 691, 695 (7th Cir. 1995). Previous decisions in the Seventh Circuit indicated that a petitioner was excused from seeking discretionary review in the Illinois Supreme Court. See e.g., White v. Godinez, 143 F.3d 1049 (7th Cir. 1998). In other words, the failure to raise all issues in the petition for leave to appeal to the Illinois Supreme Court did not result in the procedural default of these issues. The Supreme Court has reversed this decision, however, finding that a prisoner was required to present his claims to a state's supreme court for discretionary review before exhaustion requirements were satisfied. O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728 (1999). Claims that petitioner raised in the Illinois Appellate Court but failed to raise in his petitions for leave to appeal to the Illinois Supreme Court are therefore waived.
When a petitioner does raise constitutional issues in state proceedings but the state court declines to address the merits of the issues because petitioner failed to follow state procedural rules, a federal court is barred from reviewing the claims. This is because the state court's decision rests on "independent and adequate" state law grounds. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565 (1991). A state court's determination that a state procedural law was violated does not generally "result( in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the U.S. Supreme Court." 28 U.S.C. § 2254 (d).
Based on this line of cases, the only claims that petitioner has not procedurally defaulted or that are not barred by an independent and adequate state law ground are the two issues he raised on direct appeal in his petition for leave to appeal to the Illinois Supreme Court and the issues he raised in his initial post-conviction petition and subsequent appeal regarding 1) the use of "perjured testimony and fabricated evidence" and 2) ineffective assistance of trial and appellate counsel. Several of the claims in his habeas petition are so similar to each other as to be indistinguishable and the court will address any claim that it finds is a reasonable approximation of the issues listed above.
The first claim petitioner raises is that he was denied due process and the right to a fair trial by the prosecutor's improper and inflammatory statements made during opening statements and closing arguments. Petitioner claims that the prosecutor misstated the jury's function and aroused their fears of crime; improperly speculated about the location of the missing knife; and commented that petitioner failed to testify, had committed previous crimes and was an "animal" and a "wild man."
When addressing this issue on direct appeal, the Illinois Appellate Court noted that under Grifin v. California, 380 U.S. 609, 613-615 (1965), a prosecutor may not comment on a defendant's decision not to testify. It held, however, that the prosecutor's comments that "there has not been one single word of testimony" to establish consent and the complainant's testimony "is the only evidence you heard about what happened that night" did not require reversal because they were made in response to defense counsel's argument that the victim consented to the sexual acts and made up the story of her abduction. It also found that a prosecutor is permitted to "comment on the uncontradicted nature of its evidence."
As to the comments petitioner alleges indicated that he was involved in other crimes, the Appellate Court found that the prosecutor's statements simply had not suggested that petitioner had committed other crimes, but only indicated that he had abducted and raped a young woman in the instant case. It also disagreed that the prosecutor had misstated the jury's function and aroused their fears about crime, finding that the prosecutor had merely urged the jury to find petitioner guilty based on the evidence presented at trial.
While acknowledging that certain comments can "go beyond the bounds of proper argument," the appellate court found that the prosecution's statements that petitioner was a "maniac," a "sorry excuse for a man," and like an "animal" in a "zoo" did not breach these boundaries because they were reasonable in light of the brutal nature of the crimes.
Finally, petitioner objects to the prosecutor's statements in closing argument about the location of the missing knife. The Appellate Court found that the prosecutor's speculations that the knife could have been dropped outside the apartment or hidden somewhere in the kitchen were reasonable inferences based on the evidence presented.
Although petitioner cites no cases to support his contention that the prosecutor's statements were improper, the U.S. Supreme Court has held that a petitioner must establish that the prosecutorial misconduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986). The court finds that the Appellate Court's conclusion that the prosecutor's statements were either not improper or did not warrant reversal considering the strength of the evidence presented were not "contrary to" or "an unreasonable application of" Supreme Court law.
Petitioner makes the separate and additional argument that the prosecutor's improper comments should be viewed in their entirety and not in isolation so that their cumulative effect on the jury is evaluated. Respondent claims that although petitioner raised this issue before the Illinois Supreme Court, he procedurally defaulted it because he did not present it to the appellate court. In any event, the court finds that the petitioner merely reargues the points he raised above about the impropriety of each comment.
Petitioner's next claim is that he was denied due process because the trial court did not tender jury instructions on the lesser included offenses of criminal sexual assault, kidnaping and robbery despite evidence that could have reduced the offenses charged. Respondent correctly points out that because deficient instructions do not normally rise to the level of a constitutional claim, petitioner must establish that the faulty jury instruction "so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62, 72 (1991). The appellate court noted that counsel did not request instructions for lesser included offenses of kidnaping and robbery, thereby waiving the issue as to these charges. As to the sexual assault charge, for which counsel did request an instruction on a lesser included offense, the appellate court held that the trial court was correct to refuse such an instruction on this charge because the evidence only supported a conviction of the aggravated offense. Had the jury rejected the complainant's story, they would have had to have found the petitioner not guilty. A jury instruction on a middle ground would therefore have been inappropriate. The court finds that this analysis was not contrary to existing U.S. Supreme Court precedent.
A related claim petitioner raises is that federal review is warranted to determine the standard for what evidence warrants instructions on lesser included charges. Again, jury instructions are the province of state law and petitioner raises no federal constitutional issue.
Petitioner objects to the admission into evidence that the complainant testified positive for sexually transmitted organism chlamydia because there was no evidence that he had the organism and no evidence concerning when the complainant contracted the disease. Respondent again points out that evidentiary issues are not appropriate for federal habeas review unless the decision violated the petitioner's due process rights and denied him the right to a fundamentally fair trial. Abrams v. Barnett, 100 F.3d 485, 493 (7th Cir. 1996). Petitioner actually procedurally defaulted this claim by failing to raise it before the Illinois Supreme Court on direct appeal. He raised it in his post-conviction petition in the context of ineffective assistance of appellate counsel, asserting that appellate counsel should have raised the issue in the context of ineffective assistance of trial counsel. On direct appeal, however, the Appellate Court agreed that this evidence should not have been admitted. It found, however, that neither side commented on this evidence during closing arguments and that the strength of the evidence supporting the conviction rendered the improper evidence harmless. On post-conviction review, the Circuit Court found that the failure to raise the issue on appeal was simply a strategic decision and did not constitute ineffective assistance. The court finds that the state courts' findings are not contrary to existing U.S. Supreme Court precedent.
Petitioner also objects to the trial court's refusal to instruct the jury that the prosecution had the burden of proof to show beyond a reasonable doubt that the victim did not consent to sexual intercourse. Again, he has preserved this issue only in the context of ineffective assistance of trial counsel. Respondent points out that deficient instructions do not normally rise to the level of a constitutional claim. Estelle, 502 U.S. 62. The trial court made its decision to reject such an instruction after reviewing the evidence and concluding that petitioner had not effectively raised the issue of consent. The appellate court agreed, noting that the only evidence petitioner had presented in reference to the defense was the testimony of a security guard that the complainant entered the apartment building ahead of petitioner and not next to him. On review of petitioner's post-conviction petition, the Circuit Court did not address the merits of this ineffective assistance claim, presumably because it found that trial counsel had made no error. This court agrees and finds that the appellate court's analysis on direct review was not contrary to existing U.S. Supreme Court precedent. Therefore, no ineffective assistance claim based on the failure to object to the jury instruction can survive.
Petitioner faults trial counsel's failure to object to the jury instructions because they referred to the complainant as "the victim," which he claims is non-neutral and bolstered the complainant's testimony. An example: "a person who kidnaps another commits the offense of aggravated kidnaping when he commits another felony upon the victim, or he does so while armed with a dangerous weapon." Besides finding that petitioner had waived this issue by failing to object to the instruction at trial, the appellate court also rejected the claim on its merits, finding the instructions proper. The court finds that the appellate court's analysis was not contrary to existing U.S. Supreme Court precedent. Therefore, no ineffective assistance claim based on the failure to object to the jury instruction can survive.
Next, petitioner claims that he received ineffective assistance of appellate counsel because counsel failed to argue on direct appeal that the state had knowingly used perjured testimony. He bases this claim on his allegation that the complainant's testimony was impeached. This claim is similar to his claim — which was raised on direct appeal — that the evidence was insufficient to prove his guilt beyond a reasonable doubt because the victim's testimony was unbelievable. The appellate court rejected this argument and petitioner did not raise it in his petition for leave to appeal to the Illinois Supreme Court. He raised the issue of perjured testimony in his petition for post-conviction review; the Circuit Court found that the issue had been waived because it should have been raised on direct review.
The court finds that this issue has been procedurally defaulted and is meritless as well. Petitioner's recharacterizing the issue as one of ineffective assistance of appellate counsel cannot save it as it could have been raised as such in his post-conviction petition. In any event, the appellate court found on direct review that the complainant's testimony was credible although some contradictions may have existed. Petitioner also has absolutely no support for his claim that the state's attorney actually conspired with the witness to introduce perjured testimony. The decision not to include this issue in the petition for leave to appeal to the Illinois Supreme Court was obviously a strategic decision and was not ineffective assistance of counsel.
Petitioner's next claim for ineffective assistance of appellate counsel is based on counsel's failure to present arguments that the evidence was insufficient to support a verdict, a claim he distinguishes from the argument above. The court finds the distinction without a difference. Again, the claim is procedurally defaulted for failing to raise it in the post-conviction petition.
The only other issue petitioner raises that is arguably not procedurally defaulted is that he received ineffective assistance of appellate counsel for the failure to raise issues on direct appeal in the petition for leave to appeal to the Illinois Supreme Court. The Circuit Court addressed the issue of ineffective assistance of appellate counsel raised in the post-conviction petition and found that the exclusion of these issues was merely a strategic decision and did not constitute ineffective assistance. The court finds that this decision was not contrary to any U.S. Supreme Court precedent and is therefore not a valid basis for federal habeas relief.
The remainder of petitioner's claims involve complaints about his sentence of life imprisonment under the Illinois Habitual Offender Act and about the post-conviction proceedings in the Illinois courts, including whether he was entitled to appointment of counsel; whether dismissal of his post-conviction petition was in error because he had pled sufficient facts and raised the gist of constitutional issues; whether counsel violated Illinois Supreme Court Rule 651; whether the appellate court erred in allowing counsel to withdraw under Finley; whether the appellate court erred in dismissing the post-conviction petition; and whether the appellate court misunderstood the standard of review under Illinois law. He also claims that leave to appeal his post-conviction petitions was wrongly denied by the Illinois Supreme Court because that court is wrongly elected.
These claims are procedurally defaulted because of petitioner's failure to raise them at the appropriate juncture in the Illinois courts. Most of them also involve interpretation of Illinois law and rules that are improper for federal habeas review, in which this court may address only alleged violations of U.S. Constitutional law. For these reasons, as well as the reasons stated above, the court denies the petition for habeas corpus relief
ORDERED: The petition for habeas corpus relief is denied.